Notes on Natural Law and Covenant

Two Assumptions

There are two assumptions that must, I think, govern every attempt to theorize the natural law, assumptions that apply regardless of the theological content of the theory proposed. There may be other assumptions that must also be made, but these two are crucial. First, the world makes normative demands, and we are the kind of creature that can recognize and respond to the normative demands the world places upon us. Second, the normative demands the world places upon us cannot be simultaneously determinate enough to specify concrete action and universal enough to count as natural—natural in the sense that these demands can be recognized by all rational human beings simply by virtue of being rational and human.

That the world makes normative demands of this kind—demands that are determinate enough to be action-specifying—I do not deny. What I deny is that the ability to recognize and respond to these demands comes packaged with the human nature we happen to have, with the cognitive and affective capacities we share. Rather, those capacities must be formed in determinate ways—by time and place, culture and experience, positive law and divine grace—before we can be properly attuned to whatever determinate demands the world might make upon us.

I realize that many natural law theorists deny the second of these assumptions, and that some even deny both. Here I’m thinking of Germain Grisez, John Finnis, and their associates. These New Natural Lawyers take the naturalist fallacy seriously and so deny that facts about ourselves and the world can generate normative demands. Not to be deterred, they then develop a theory of practical rationality that provides the middle terms, we might say, between (so-called) non-moral facts about self and world and a collection of determinate, action-specifying demands. These demands follow from practical reflection on those facts, reflection governed by the requirements of practical reasonableness. My purpose is not to evaluate this proposal. I have done that elsewhere. ² Rather, I will simply say that there are good reasons for making both of my assumptions. Consider two, one for each.

That the world makes normative demands that we are capable of recognizing and to which we can respond with love or desire, fear or anger, deliberation and action, is an assumption that must be made if we are to make sense of ourselves as capable of practical agency. The alternative is to think that our actions follow from desires and passions that we simply have and hope to satisfy, desires and passions unprompted by our recognition of value in the world. But there are two related problems with this thought. First, it’s not exactly clear how one desire or passion can be distinguished from any other (love from fear, for example) or specified within its genus (love for chocolate distinguished from love for justice) without assuming that each is prompted by our recognition of specific objects of value in the world. Those objects of value might be regarded in themselves, as in the case of love, or as qualified in some way—by threat, for example, in the case of fear. But in each case, it is some specific object picked out in a conception of it and responded to in accord with that conception that individuates the response and enables us to assign it to someone who has it.

Second—and here I borrow an argument from Akeel Bilgrami—it’s not exactly clear how passion and desire can actually motivate action if they are simply given in advance, unprompted by objects of value in the world. In that event, I would experience my rational desires, for example, not as an agent, not in ‘the first person mode’, not by ‘taking in the world around me and by perception of its desirabilities and value properties’, acting in accord with the normative demands it makes. ³ Rather, I would experience my desires in a third person mode, as if from the outside, as desires I happen to have but not as prompted by an object that I have recognized as good and come to desire as a consequence of that recognition. ⁴ I would experience my desire for chocolate, for example, as I experience your desire for the same. Bracketing for now the dynamics of mimesis, it’s not clear how my recognition that you desire chocolate and intend to have it, can, by itself, generate my love for it or my desire and action for the sake of it. In short, noticing an intentional state is not the same as having one.

That the normative demands the world places upon us cannot be both determinate enough to be action-specifying and natural in the sense that they are recognized by all human beings simply by virtue of being human is an assumption warranted by the standard criticism of those theories that deny it. According to this criticism, every natural law theory that identifies normative demands of this kind on appeal to some aspect of our shared humanity should be regarded with suspicion.

Perhaps it is an ideological smokescreen, perhaps a medium of power’s self-deception. Perhaps it is offered as sorrow’s response to a moral culture beset by conflicts, serious and seemingly intractable. Perhaps it is a desire for recognition, for home truths to become public reason. But regardless of its psychological origins, a natural law theory of this kind is deployed to naturalize the contingent, to make necessary and universal what in fact is not, presumably in order to valorize some local set of norms and commitments. Refuse this move, and a natural law theory might generate moral generalities—do no injustice and the like—but these moral platitudes are not exactly action-specifying. While true enough in themselves, they are not determinate enough to direct us toward any particular course of action or away from any other.

Creation and Providence

If these two assumptions are sound and for roughly these reasons, then our efforts to theorize the natural law must be governed by them. In general, this means we must abandon the aims that natural law theory is typically thought to have, even as we retain the object of its concern, the matter about which its theorizing regards. The normative demands of nature should continue to be the material concern of natural law theory, the object that its inquiries regard, but its practitioners should not proceed in the hope that attention to this object will yield concrete, action-specifying moral norms. This ambition should be abandoned and replaced with some other, one that comports both with this particular object and with natural law theory’s traditional desire for universality. ⁵ My suggestion, not entirely original, is this: natural lawyers should attend to the most basic normative demands the world makes upon us, upon human beings as such, and they should account for our most basic capacity to recognize these demands, grasp them as rational creatures do, and respond to them with love, desire and action. ⁶

Situated in a theological framework, this modest or generous (you pick!) natural law theory will first of all treat creation and providence as they regard human agency in general. It will regard the creation of our most basic capacities to recognize and respond to the normative demands the world makes, to the most basic features of the human good that can be found within it. Since it is a theory of law, it must regard those capacities as governed by legal precept, as ordained to ends specified by the command of a law-giver and thus subject to legal constraint. Since it regards human agency, this obedience to command, this constraint by law, must be rational, not coerced, which means that the ends to which the natural law’s precepts direct us must be recognized by us as ends and willingly desired as a result of that recognition. ⁷

So too, it means that this constraint by law through recognition and endorsement of its demands will be a kind of participation in the Creator’s judgment about our good, a kind of sharing in the divine law-giver’s wisdom about the proper ends of human action. Natural law theory must give an account of this participation, this sharing, whereby we become provident over our own actions as we participate in God’s judgment about our good. It is this participation that accounts for our ability to recognize and respond to the most basic normative demands the world places upon us, and it is this ability that generates our actions, whatever they might be, and that account for their distinguishing feature, namely, their basic rationality.

Most crucially, it means that this participation is the medium of God’s providential rule over us. God governs human action as such, rules and measures all that we do, just by virtue of the fact that we participate in God’s judgment about the human good found in the world, a good that makes normative demands upon us, demands that we can recognize by virtue of that participation. This is the first point.

The second is this: a theologically inflected natural law theory that is modest in aim and generous in scope must give an account of the causal and conceptual relations that obtain between our capacity to recognize and respond to the normative demands the world places upon us, the rational human agency that emerges as a result of this capacity, and the requirements of justice. It is a theory of law, after all, and there is a tradition of Christian jurisprudence that includes Augustine, Aquinas and Calvin that associates right authority to command and justified constraint by law with the common good that law-givers are obliged to secure and protect for those subject to their rule. Genuine law promulgated by authorized rulers directs us to this good, and it is this good that creates the connection to justice.

The claim goes to the heart of what justice is and what just actions and laws most basically hope to accomplish. In the briefest outline, the argument goes like this. Justice regards rightly ordered relations between persons and just laws create that order. They set relations right by directing us to deliver to each the good that each is due by right. A relationship set right by just laws and exchanges—this is a good shared and enjoyed in common by those who participate in the relationship. Indeed it is the most basic good. Whatever else just laws and actions accomplish, when they succeed in setting a human relationship right, they secure this basic, common good for the participants in that relationship. This is what Augustine, Aquinas and Calvin among others mean when they say that just laws, and so too just conduct, must necessarily seek the common good.

It follows that the natural law, insofar as it is law, includes precepts that dispose us to this good, to relations set right between persons, and a natural law theory will have to give an account of the origin and character of precisely this relationship between precept, action and common good. That account must include two parts. It must show, first, how human action and its source—our most basic capacity to recognize and respond to the normative demands the world makes—are ruled and governed by precepts that dispose us to a common good. Then second, it must show how human agency includes the capacity to regard relations set right between persons as good and desirable features of this world, as ends to be sought within it. And it must show how this basic regard for right relations among persons, this natural recognition of its goodness, can generate the requirements, in broad outline, that will in fact set those relationships right and so guarantee this good. It must show, in other words, how our natural orientation to the human good entangles us with the right through the medium of human relationships.

Relationship and Requirement

Accounting for this entanglement of the right and the good is one of the basic tasks of natural law theory. If I am right to insist that this entanglement is mediated through our regard for relationships set right, then the traditions of Reformed theology have something of their own to contribute to this task, especially as it is taken up in the context of Christian commitment. Just this: our created capacity to recognize and respond to the world’s normative demands can be regarded in covenantal terms, in terms of a relationship offered as gift and of the requirements that come as this gift is recognized, received, and responded to with desire and action.

Put in these terms, our most basic orientation to the world’s normative demands, our acts of recognition and response to the most basic forms of the human good, must be conceived stereoscopically. On the one hand, we simply perform these acts. Given the kind of creature that we are, given the rational agency with which we have been blessed by our Creator, this is simply what we do. If we are to be this creature with this agency, then these acts of recognition and response are what is to be done. On the other hand, if our most basic orientation to the world’s normative demands are ruled and governed by the precepts of a law-giver, then these acts of recognition and response must also be conceived in terms of obedience to God’s command. They must be conceived as our conformity to a requirement to do this, not that, and our conformity must be regarded as a right response to the original blessing, to the rational agency we have been given.

This stereoscopic vision—of human nature given as gift and of rational agency offered in obedient reply—is, I want to say, covenantal. When we recognize and respond to some particular instance of the most basic normative demands the world places upon us, to some aspect of the human good, we not only act as human beings do, but we do so in accord with the gift we have been given, the rational nature that we share, and our actions can be regarded as offered in obedience to legal precept promulgated by command—a command that creates, an obedience that sets right the relationship between creature and Creator, a relationship made possible by the gift of our humanity.

And it is not just that covenantal terms can be used to describe the most basic relationship between God and humanity, the relationship constituted by the creation and ongoing providential rule of our agency. It is also that our agency disposes us to human relationships that can be regarded in these same terms. If, by the gift of created nature, we are social animals, and if we regard human relationships set right as good and desirable features of the world, then it is through this regard that requirements emerge, requirements that oblige us to act in certain ways and so secure and safeguard this good. And of course, if it is our natural, universally shared capacity to recognize and respond to the most basic normative demands that the world places upon us that generates these requirements, then they must be of the most general sort. Not action-specifying, they must, instead, be nothing more than those platitudes that help bring the concept of just relations among persons into focus: do no harm and the like.

A relationship bestowed as gift, requirements that emerge within the relationship bestowed, and obedience to their demands that sets right that relationship and so secures a common good—this is the covenantal logic that the Reformed tradition can bring to the task of theorizing the natural law in a theological framework. The biblical warrants for thinking of creation in these terms, as both an effect of a law-giver’s command and, in the case of humanity, as a gift that takes the form of a relationship and its requirements, comes from the Priestly traditions of Gen. 1:1–2:4; Psalm 74 and 104. In these texts, creation is not merely a necessary prelude and backdrop to subsequent covenants, most crucially the covenant on Sinai, but creation is itself described in terms of this logic. In each case, a relationship that God creates—first with humanity, then with Israel—comes packaged with requirements, with legal precepts that set the terms of the relationship and secures its good. In each case, the relationship comes as love’s gift, as unmerited grace, and its requirements bind those who receive it. In the case of creation, the relationship generates the most basic requirement: go and do the kinds of things that human beings do, which the Genesis text puts in terms of filling and subduing the earth, eating plants not flesh, and keeping the Sabbath. In the case of Sinai, the relationship with Israel, forged in the context of slavery and rescue, comes packaged with the Old Law, with all of its moral, ceremonial and judicial precepts.

And of course, it’s this same covenantal logic that the apostle Paul uses to describe the gospel he brings to the churches in Rome and Galatia. Once alienated from the God of Israel, the Gentiles are now reconciled to this God and gathered into the household of the Father through Christ’s sacrifice (Rom. 5:6-11; 8:15-17; Gal. 6:10). While hesitant to speak of law, Paul insists that this new relationship comes with a host of requirements. It is a familiar litany: love God and one another, hate what is evil, hold fast to what is good, extend hospitality to strangers, bless those who persecute you, live in harmony with one another, do not be a hindrance or stumbling block to the spiritual progress of another, bear each other’s burdens. To these we can add the precepts from the Sermon on the Mount in Matthew 5 and the requirements of discipleship from Mark 8.

In general, what this New Law demands are acts of love for God and neighbor, and yet because they are requirements of an antecedent relationship, they are ordered to the ends of justice. When offered and received, they set a relationship right, they fulfill the law, and so secure a good shared in common between lover, beloved, and God.

Something Old, Something New

At this point, some will say that I have abandoned my topic as I have strayed from the natural law to the New, but in fact I have not. In each case, I have simply traced the covenantal logic of gift and law, good and right, love and justice, relationship and requirement. In each case, a relationship given as gift comes with requirements that set the relationship right, that secure a common good, a good that is nothing but this rightly ordered relationship.

Human nature is a gift that includes a relationship with the Creator who bestows it and with the creatures that share it, and its laws are a requirement of these relationships. And this covenant of creation not only makes the other covenants possible, it also provides the formal terms for conceiving them. The act of grace that brings salvation imitates the act of creation that generates nature. This analogy between the covenant of nature and the covenants of grace does not collapse one into the other, but it does identify a conceptual norm: these covenants must be regarded together. Traditionally, this common regard has been achieved through attention to material content, whereby the requirements of a later covenant are said to fulfill and make explicit the requirements of an earlier one. Without denying this progression from early to late, hidden to revealed, I am simply suggesting that we pay attention to this formal analogy as well.

The analogy is real, but imperfect, and the key difference regards sacrifice. While each of these covenants is created by love’s desire for a relationship with another, the covenants of grace are constituted sacrificially and the requirements that come recapitulate the offering. By contrast, the covenant of nature is neither constituted sacrificially nor do its most basic requirements demand an obedience that suffers loss.

Presumably, God suffered no loss in creating all things and nor do we when we obey the commands of our Creator and simply act as human beings do. And yet we might say, somewhat crudely, that liberating Israel from Egyptian bondage required love’s sacrifice of time, effort and determination. Obedience to the Old Law requires much the same and more: not only effort and determination, but a willingness to sacrifice self-interest for the sake of loosening the bonds of injustice, satisfying the needs of the afflicted, restoring the streets of the city, and keeping the holy day of the Lord. ⁸ Such obedience yields justice—relationships set right in accord with the requirements of the law—and yet in this instance justice comes from love’s willingness to endure loss for the sake of these relationships. The New Testament reproduces the pattern. Christ’s love for the Gentiles includes a willingness to suffer loss for the sake of a relationship with them, and faith’s recognition of this sacrifice includes love’s obedience. It includes a willingness to make a return on this love to both God and neighbor and so set right these relationships in accord with love’s norm.

Others will say that I have interpreted the Reformed tradition’s covenantal rendering of the natural law in somewhat irregular ways, and so I have. I have said that the natural law principally regards the creation and providential rule of human agency as such, and only secondarily the moral platitudes written on our hearts. And I have put grace before law. Love’s gift creates covenantal relationships that in turn generate normative demands. This is not how the tradition is normally regarded. Certainly Calvin associated the natural law with Paul’s remarks about inward law and conscience (Rom. 2:15), and for him this law comes first, while grace comes as rescue from disobedience to the law’s demands. ⁹ Still, I am not entirely alone in this irregular Calvinism. After all, it was Karl Barth who insisted that covenant is the internal basis of creation and creation the external basis of covenant. ¹⁰ And it was Barth who appeals to the covenantal logic of relationship and requirement in order to show how Christ’s election creates humanity’s relationship with the God of Israel and how faith’s witness must recognize and reproduce Christ’s obedience to the norms of this relationship. ¹¹ That Barth might be an exemplary representative of the Reformed natural law tradition interpreted in covenantal terms is a possibility that I simply voice at the end.